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394 U.S.

399
89 S.Ct. 1107
22 L.Ed.2d 367

In the Matter of James D. HERNDON. March 25, 1969.


Charles Morgan, Jr. (Reber F. Boult, Jr. Orzell Billingsley, Jr.,
Robert P. Schwenn, Melvin L. Wulf and Eleanor Holmes
Norton, on the brief), for movants. Perry Hubbard (George A.
LeMaistre, on the brief), for James D. Herndon. Louis F.
Claiborne (Solicitor General Griswold, Assistant Attorney
General Pollak, Nathan Lewin and Frank M. Dunbaugh, on the
brief), for the United States as amicus curiae. djQ PER
CURIAM. The appeal in Hadnott
v.
Amos, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336, decided today, was argued with
the motion filed by appellants on November 19, 1968, 'for an order to show cause
why Judge Herndon should not be hel in contempt and for other relief.' 393 U.S.
996, 89 S.Ct. 489, 21 L.Ed.2d 462. On September 18, 1968, the three-judge court
entered a temporary restraining order enjoining appropriate Alabama officials from
using any ballots at the general election of November 5, 1968 which did not include
the

[400]
names of the candidates of the National Democratic Party of Alabama
(NDPA). This order was dissolved on October 11, 1968, one judge
dissenting. 295 F.Supp. 1003. The appellants sought interim relief from
this Court pending appeal, and on October 14, 1968, we entered an order
that: 'The application for restoration of temporary relief is granted pending
oral argument on the application * * *.' 393 U.S. 815, 89 S.Ct. 138, 21
L.Ed.2d 90 (1968). Oral argument was heard on October 18, and on
October 19 we entered an order that: 'The order entered on October 14,
1968, restoring temporary relief is continued pending action upon the
jurisdictional statement which has been filed.' 393 U.S. 904, 89 S.Ct. 227,
21 L.Ed.2d 208. Nevertheless, Judge Herndon, who was responsible for
the preparation of the Greene County ballot for local offices, did not place
the NDPA candidates for such offices on the ballot. We conclude that
decision on the motion should await timely initiation and completion of

appropriate proceedings in the District Court to determine whether Judge


Herndon's failure to place NDPA candidates on the ballot constituted
contempt of the order of September 18 of the District Court. Decision on
the motion is therefore postponed. It is so ordered. Decision postponed.
Mr. Justice BLACK took no part in the consideration or decision of this
case. djQ Mr. Justice DOUGLAS, whom Mr. Justice HARLAN joins,
dissenting. This is a motion requesting that we initiate a proceeding
against Herndon, Probate Judge in Greene County, Alabama, for
disobedience of our order as described in Hadnott v. Amos, 394 U.S. 358,
89 S.Ct. 1101, 22 L.Ed.2d 336, decided this day. Our order, if obeyed,
would have resulted in the black candidates, sponsored by the National
Democratic Party of Alabama (NDPA), having been on the
[401]
ballot for county offices in Greene County in the general election of
November 1968. They were, it is alleged, left off the ballot due to the
actions of Judge Herndon, as related in Hadnott v. Amos. This motion,
filed by appellants in No. 647, states they are informed and believe that
Judge Herndon's failure to place these nominees on the ballot was done
'wilfully and with actual knowledge of the order of this court.' Judge
Herndon filed his response to that motion, in which he denied that the
omission of the NDPA candidates for county office was 'willfully or
contumaciously done with actual knowledge of the said orders of this
court.' This motion was briefed and argued when No. 647 was presented
on the merits. I have studied the record and read the briefs; and as
presently advised I think there is probable cause to conclude that Judge
Herndon knowingly and purposefully evaded our order. What the ultimate
conclusion will be depends, of course, on a full hearing at which Judge
Herndon receives that notice and that opportunity to be heard which is
required by due process. But if what appears to be probable cause matures
into full-fledged findings, we have a flagrant violation of our order, which
involves a vital problem of civil rights, involving the command of the
Fifteenth Amendment, that extends the ballot to the blacks. In a case of far
less consequence the Court, proceeding by contempt on an information
filed by the Attorney General, United States v. Shipp, 214 U.S. 386, 439,
29 S.Ct. 637, 651, 53 L.Ed. 1041, held a sheriff and his deputies in
contempt for silent cooperation with a mob in hanging a prisoner whose
case was before this Court. That sheriff acted by merely turning his back
and letting the mob run wild. In the present case, if the facts alleged are
proved, Judge Herndon's
[402]

affirmative acts unlawfully kept the NDPA candidates off the ballot. Rule
42(a) of the Federal Rules of Criminal Procedure governs contempt in the
presence of the court. Rule 42(b) covers the contempt alleged here, viz.,
disrespect or violation of this Court's order. Rule 42(b) provides: 'A
criminal contempt except as provided in subdivision (a) of this rule shall
be prosecuted on notice. The notice shall state the time and place of
hearing, allowing a reasonable time for the preparation of the defense, and
shall state the essential facts constituting the criminal contempt charged
and describe it as such. The notice shall be given orally by the judge in
open court in the presence of the defendant or, on application of the
United States attorney or of an attorney appointed by the court for that
purpose, by an order to show cause or an order of arrest. The defendant is
entitled to a trial by jury in any case in which an act of Congress so
provides. He is entitled to admission to bail as provided in these rules. If
the contempt charged involves disrespect to or criticism of a judge, that
judge is disqualified from presiding at the trial or hearing except with the
defendant's consent. Upon a verdict or finding of guilt the court shall enter
an order fixing the punishment.' I would issue the notice prescribed by
Rule 42(b), designate an attorney to represent the Court, appoint a Master,
and get on with the hearings. Reservation of action on the motion
implicates the Double Jeopardy Clause. Successive federal prosecutions
of the same person based on the same acts are prohibited by the Fifth
Amendment.1 See United States v. Lanza, ----------1 .'Our minds rebel
against permitting the same sovereignty to punish an accused twice for
the same offense.' State of La. ex rel. Francis v. Resweber, 329 U.S. 459,
462, 67 S.Ct. 374, 375, 91 L.Ed. 422 (opinion of Reed, J.).

1[403]
260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314; Abbate v. United States, 359 U.S.
187, 197, 79 S.Ct. 666, 13 L.Ed.2d 729 (opinion of Brennan, J.). It was held in
Pereira v. United States, 347 U.S. 1, 9, 74 S.Ct. 358, 363, 98 L.Ed. 435, that: '(A)
defendant may be convicted of (two offenses) even though the charges arise from a
single act or series of acts, so long as each requires the proof of a fact not essential to
the other.' In the instant case, however, it is likely that the facts underlying both
contempt charges will be identical. In fact, it may have been impossible for Judge
Herndon to have violated one court order without violating the other.2 ----------2 .'The
Constitutional safeguard (against double jeopardy) applies * * * (where) a person
has been tried and convicted of a crime and it is sought to prosecute him again for
the same or an included offense; (where) a person has been convicted and sentenced
and an attempt is made to increase the sentence; (and where) a person has been

acquitted after a trial on the merits and an endeavor is made to prosecute him again
for the same or an included offense.' United States v. Whitlow, 110 F.Supp. 871,
872 (D.C.D.C.1953). Federal Marine Terminals, Inc. v. Burnside Shipping Co.
[89SCt1144,394US404,22LEd2d371] 89 S.Ct. 1144 394 U.S. 404 22 L.Ed.2d 371
FEDERAL MARINE TERMINALS, INC., Petitioner, v. BURNSIDE SHIPPING
CO. Ltd.
2No. 291.
3Argued Jan. 15, 1969.
4Decided April 1, 1969.
5

John W. Hough, Chicago, Ill., for petitioner.

Paul McCambridge, Chicago, Ill., for respondent.

Mr. Justice STEWART delivered the opinion of the Court.

Under 33 of the Longshoremen's and Harbor Workers' Compensation Act,1


an employer who pays compensation benefits to the representative of a
deceased employee may be subrogated to the rights of the representative
against third persons.2 The question presented by this case is whether a
stevedoring contractor whose longshoreman employee was killed in the course
of his employment is limited to this subrogation remedy in seeking
reimbursement from a shipowner on whose vessel the longshoreman met his
death. Both the District Court3 and the Court of Appeals4 held that statutory
subrogation is the stevedoring contractor's exclusive remedy against the
shipowner, and we granted certiorari to consider this novel question under the
Act.5

I.
9

According to the stipulation of facts, the M/V Otterburn, owned and operated
by respondent Burnside Shipping Co., was under time charter to Federal
Commerce and Navigation Co., a Canadian corporation affiliated with the
petitioner, Federal Marine Terminals, Inc. Federal Commerce hired Marine
Terminals to continue the operation, already commenced by the ship's crew, of
preparing the vessel to receive a cargo of grain. While the ship was docked in
Detroit, the crew had commenced installation of 'grain feeders'walled-in
structures erected in the 'tween deck hatches to the height of the main deck
hatch. After Marine Terminals had been employed to continue the work of

readying the ship for its cargo, the boatswain, acting on the instructions of the
ship's Chief Officer, 'winged out' the deep tank lidsthat is, pulled them
outboard into the wings of the 'tween deck. No railing, wire, or guard of any
kind was placed around the resulting deep tank openings.
10

Marine Terminals' employees began working on the Otterburn after it had been
removed the Chicago. On the morning of the third day of work, a group of
Marine Terminals' stevedores, supervised by Gordon McNeill, arrived at
approximately 7 o'clock to continue with carpentry work in the 'tween deck as
part of the last stages of completing a grain feeder in the area of the 'winged
out' deep tank lids. McNeill was last seen alive shortly after 8 a.m. At 8:45 a.m.
his lifeless body was discovered lying at the bottom of one of the deep tanks.
There were no witnesses to his 30-foot fall.

11

McNeill's widow filed a claim for benefits under the Act for herself and three
minor children, and the Department of Labor entered a compensation order for
weekly payments of $36.75 to the widow and $33.25 to the children. The
potential total liability of Marine Terminals for these payments is
approximately $70,000. As administratrix of McNeill's estate, his widow also
filed a maritime wrongful death action against Burnside Shipping Co. in the
United States District Court for the Northern District of Illinois. Burnside
answered the complaint, denying that McNeill's death had been caused by its
negligence or by its failure to furnish a seaworthy vessel.

12

Burnside also commenced a separate action in the same court against Marine
Terminals seeking indemnification for any judgment it might be required to pay
in the wrongful death action. The libel charged that, by virtue of the agreement
with the time charterer to prepare the ship for its cargo, Marine Terminals
'warranted that its services to the vessel would be performed in a safe,
workmanlike and seamanlike manner.' That warranty was alleged to have been
breached and the accident caused by Marine Terminals' negligence, giving rise
to an obligation to save Burnside harmless from all liability and expense
occasioned by McNeill's death.

13

Marine Terminals filed an answer denying most of the allegations of the libel,
and also filed a counterclaim seeking damages from Burnside for 'all sums
which have been paid or will be paid' as compensation benefits to McNeill's
dependents. The counterclaim alleged that Burnside, as owner and operator in
control of the Otterburn, owed the stevedoring contractor 'the duty of providing
and maintaining a safe place to work so that injury to the employees * * *
would be avoided.' Burnside had violated that duty, according to the
counterclaim, by its negligence.

14

'in failing to properly guard the deep tank opening, or make the passageway
secure, or to cover up the said deep tank, and in failing to clear the
passageways, and failing to provide adequate lighting in the area or to provide a
safety railing around the deep tank opening, thereby causing, suffering and
permitting the area and open deep tank to be a source of menace and danger.'

15

Burnside oved to dismiss the counterclaim for failure to state a cause of action.
Each party then filed a motion for summary judgment on its claim and
counterclaim.

16

The District Court, finding that material factual disputes existed concerning the
conduct of both parties, denied Burnside's motion for summary judgment on its
complaint.6 But it did grant the motion to dismiss Marine Terminals'
counterclaim. The court noted Marine Terminals' concession that its theory of a
direct action against the shipowner was novel. Normally the stevedoring
contractor is content with its remedy of subrogation to the rights of the
deceased longshoreman's representative against whatever third party may be
liable for the death, usually the shipowner. In this case, however, the applicable
Illinois Wrongful Death Act limited the amount recoverable by the decedent's
representative to $30,000,7 far short of Marine Terminals' potential liability of
$70,000. The court recognized that '(t)he existence of such a direct right over is
well established in certain situations,'8 but concluded that the employer's rights
provided by the Longshoremen's and Harbor Workers' Compensation Act are
exclusive and 'prevent him from maintaining an independent cause of action
against the third party tortfeasor.'9

17

The Court of Appeals affirmed, agreeing that Marine Terminals' sole remedy is
by subrogation under the Act. But while the District Court had implied that the
stevedoring contractor would have had a direct action had it not been abrogated
by the Act, the Court of Appeals appeared to assume that, in the absence of the
statutory remedy, federal maritime law would permit no direct recovery from
the shipowner:

18

'There is no common law direct action as the defendant argues. There is only
the Longshoremen's and Harbor Workers' Compensation Act which creates an
entire legal procedure in this part of admiralty law. We cannot search outside of
the Act for common law remedies which do not exist. The Act is the source of
all remedies.'10

19

This case thus presents two questions. First, does 33 of the Act exclude
whatever other rights of action the stevedoring contr ctor might have against

the shipowner for compensation payments to an employee or his


representative? Second, if statutory subrogation is not an exclusive remedy,
does the shipowner owe the stevedoring contractor any duty whose breach will
give rise to a direct action? We consider these questions in order below.
II.
20

The Court of Appeals was clearly mistaken in its assertion that '(t)he statutory
method provides that the (stevedoring contractor) can sue only as a subrogee.'11
Nothing on the face of 33 of the Act purports to limit the employer's remedy
against third persons to subrogation to the rights of the deceased employee's
representative. The provision of 33 that the employer's payment of
compensation 'shall operate as an assignment to the employer of all right of the
legal representative of the deceased * * * to recover damages against such third
person' contains no words of limitation. Congress thereby gave the employer, in
return for his absolute liability to the employee's representative, part of the
latter's rights against others. But the legislative grant of a new right does not
ordinarily cut off or preclude other nonstatutory rights in the absence of clear
language to that effect. When Congress imposed on the employer absolute
liability for compensation, it explicitly made that liability exclusive.12 Yet in
the same Act it attached no such exclusivity to the employer's action against
third persons as subrogee to the rights of the employee or his representative.

21

Nothing in the legislative history of the Act remotely supports the construction
adopted by the courts below. And we can perceive no reason why Congress
would have intended so to curtail the stevedoring contractor's rights against the
shipowner. The exclusivity of the statutory compensation remedy against the
employer was designed to counterbalance the imposition of absolute liability;
there is no comparable quid pro quo in the relationship between the employer
and third persons. On the contrary, as we emphasized in Ryan Stevedoring Co.
v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, the Act
is concerned only with the rights and obligations as between the stevedoring
contractor and the employee or his representative. It does not affect
independent relationships between the stevedoring contractor and the
shipowner. Neither this Court13 nor, before this case, any other court14 has held
that statutory subrogation is the employer's exclusive remedy against third party
wrongdoers, and we decline to so hold today.

III.
22

We must also reject the implication of the Court of Appeals' opinion that under
federal maritime law the shipowner owed the stevedoring contractor no duties

whose breach would give rise to a direct action for damages. As we held in
Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct.
406, 410, 3 L.Ed.2d 550, 'the owner of a ship in navigable waters owes to all
who are on board for purposes not inimical to his legitimate interests the duty
of exercising reasonable care under the circumstances of each case.' That duty
of due care imposed by law extends to the stevedoring company as well as to
others lawfully on the ship, and its breach gives rise to a cause of action for any
damages proximately caused. It is not disputed, for example, that if the
shipowner's negligence caused damages to the stevedoring contractor's
equipment, those damages would be recoverable in a direct action sounding in
tort. We can see no reason why the shipowner's liability does not in like fashion
extend to the foreseeable obligations of the stevedoring contractor for
compensation payments to the representative of a longshoreman whose death
was occasioned by the shipowner's breach of his duty to the stevedoring
contractor.
23

We do not, of course, hold that the shipowner's duty to the employer is the
same as to the employee. Nor do we disapprove the Court of Appeals' holding
that the shipowner does not owe to the stevedoring contractor the absolute duty
of seaworthiness owed to individual longshoremen. 15 But Marine Terminals'
counterclaim in this action did not rely on the unseaworthiness of the ship.
Rather it charged that Burnside had been negligent in certain particular
respects.16 And we have suggested before this that, while 'the duties owing
from (the shipowner) to (the longshoreman) were not identical with those from
(the shipowner) to (the stevedoring contractor),' the shipowner can be negligent
with respect to the stevedoring contractor as well as to the longshoreman.
Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 568, 78 S.Ct.
438, 441, 2 L.Ed.2d 491. 17 Neither court below reached the question whether
the counterclaim sufficiently alleged a breach of the duties owed by Burnside to
Marine Terminals, and relevant factual questions remain unresolved. With the
case in its present posture, therefore, we express no opinion as to whether the
conduct of Burnside's employees amounted to a breach of the duty it owed to
Marine Terminals.18 We hold only that federal maritime law does impose on the
shipowner a duty to the stevedoring contractor of due care under the
circumstances, and does recognize a direct action in tort against the shipowner
to recover the amount of compensation payments occasioned by the latter's
negligence.

24

This holding is in no wise a departure from our decision in Halcyon Lines v.


Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 285, 72 S.Ct. 277, 280, 96
L.Ed. 318, that we would not 'fashion new judicial rules of contribution'
between the shipowner and the stevedoring contractor as joint tortfeasors.

Marine Terminals is not seeking contribution. It is not asking Burnside to share


responsibility for their joint negligence with respect to McNeill. Rather the
counterclaim seeks recovery of the full amount of Marine Terminals' liability
under the Act to McNeill's representative; and it is founded not on Burnside's
wrong to McNeill but on its independent wrong to Marine Terminals.
25

We further note that at this stage of the case it must be assumed that Marine
Terminals was faultless vis-a-vis Burnside, for the claim that Marine Terminals
breached its Ryan warranty of workmanlike service has not yet been
adjudicated and is not before us. We decide nothing today with respect to the
interaction between the shipowner's breach of warranty claim and the
stevedoring contractor's tort claim. Marine Terminals has charged Burnside
with negligence not as a defense to the latter's Ryan claim but in a counterclaim
for damages, and we have considered that claim without regard to the
implications of the shipowner's countervailing cause of action. Our holding is
perforce limited to a rejection of Burnside's argument that 'a shipowner's
tortious conduct may be used as a shield, but not as a sword.'

IV.
26

In holding that the stevedoring contractor has a direct action in tort, we do not
preclude the possibility of a direct action under some other theory. Marine
Terminals argues in this case, for example, that just as a stevedoring contractor
impliedly warrants to a shipowner under Ryan that it will perform the
stevedoring services in a workmanlike manner, so also there are reciprocal
contractual warranties running from the shipowner to the stevedoring
contractor.19 Burnside counters with the observation that the stevedoring
contract in this case is between Marine Terminals and its affiliate Federal
Commerce, the time charterer, and that there is therefore no privity of contract
between Marine Terminals and Burnside. Because the record before us contains
neither the contract for stevedoring services nor the charter agreement, we
cannot now assess these arguments. We do not know, for instance, whether any
provisions of the time charter contain express or implied warranties which
would inure to the benefit of Marine Terminals as stevedoring contractor.20

27

Marine Terminals has also argued that, aside from any express or implied-infact contract, it has a quasi-contractual right of indemnity for the liability which
it incurred under the Act on account of the shipowner's wrong. This right,
which was evidently recognized by the District Court,21 is said not to stem
solely from the pre-existing contractual relationship between the parties, but to
be conferred by law in order to place the liability where it justly belongs.22 As
one court has described it,

28

'admiralty courts have recognized a right to indemnity, as distinguished from


contribution, in a person who has responded in damages for a loss caused by
the wrong of another. This right has been recognized in two general classes of
cases: those in which the person seeking indemnification was without fault; and
those in which such person was passively negligent, but the primary cause of
the loss was the active negligence of another.'23

29

Recovery can be based on this concept, Marine Terminals contends, because


Burnside's conduct was either solely or primarily responsible for MeNeill's
death.

30

We express no opinion on the validity of this indemnity theory or its


application to this case, but hold only that Marine Terminals is not foreclosed
by any decision of this Court from raising it in the District Court. We have
cautioned that 'in the area of contractual indemnity an application of the
theories of 'active' or 'passive' as well as 'primary' or 'secondary' negligence is
inappropriate,' Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S.
563, 569, 78 S.Ct. 438, 442, 2 L.Ed.2d 491. 24 But that proscription in terms
applied only 'in the area of contractual indemnity' under Ryan. In Ryan itself
we specifically did 'not meet the question of a noncontractual right of indemnity
or of the relation of the Compensation Act to such a right.' 350 U.S., at 133, 76
S.Ct., at 237. 25 By leaving open the question of such an indemnity action by the
shipowner against the stevedoring contractor, a fortiori we did not decide
anything with respect to such an action by the stevedoring contractor against
the shipowner.26

31

Because, as we hold today, 33 of the Longshoremen's and Harbor Workers'


Compensation Act is not the exclusive source of the stevedoring contractor's
remedies against the shipowner, and the former may have a cause of action in
tort for the compensation payments caused by the shipowner's negligence, we
reverse the judgment of the Court of Appeals and remand this case to the
District Court for further proceedings consistent with this opinion.

32

It is so ordered.

33

Reversed and remanded with directions.

Section 33, as amended in 1959, 73 Stat. 391, as set forth in 33 U.S.C. 933,
reads as follows:

'(a) If on account of a disability or death for which compensation is payable


under this chapter the person entitled to such compensation determines that
some person other than the employer or a person or persons in his employ is
liable in damages, he need not elect whether to receive such compensation or to
recover damages against such third person.
'(b) Acceptance of such compensation under an award in a compensation order
filed by the deputy commissioner shall operate as an assignment to the
employer of all right of the person entitled to compensation to recover damages
against such third person unless such person shall commence an action against
such third person within six months after such award.
'(c) The payment (of such compensation into the fund established) in section
944 of this title shall operate as an assignment to the employer of all right of the
legal representative of the deceased (hereinafter referred to as 'representative')
to recover damages against such third person.
'(d) Such employer on account of such assignment may either institute
proceedings for the recovery of such damages or may
compromise with such third person either without or after instituting such
proceeding.
'(e) Any amount recovered by such employer on account of such assignment,
whether or not as the result of a compromise, shall be distributed as follows:
'(1) The employer shall retain an amount equal to
'(A) the expenses incurred by him in respect to such proceedings, or
compromise (including a reasonable attorney's fee as determined by the deputy
commissioner);
'(B) the cost of all benefits actually furnished by him to the employee under
section 907 of this title;
'(C) all amounts paid as compensation;
'(D) the present value of all amounts thereafter payable as compensation, such
present value to be computed in accordance with a schedule prepared by the
Secretary, and the present value of the cost of all benefits thereafter to be
furnished under section 907 of this title, to be estimated by the deputy
commissioner, and the amounts so computed and estimated to be retained by
the employer as a trust fund to pay such compensation and the cost of such
benefits as they become due, and to pay any sum finally remaining in excess

thereof to the person entitled to compensation or to the representative; and


'(2) The employer shall pay any excess to the person entitled to compensation
or to the representative, less one-fifth of such excess which shall belong to the
employer.
'(f) If the person entitled to compensation institutes proceedings within the
period prescribed in subdivision (b) of this section the employer shall be
required to pay as compensation under this chapter a sum equal to the excess of
the amount which the Secretary determines is payable on account of such injury
or death over the amount recovered against such third person.
'(g) If compromise with such third person is made by the person entitled to
compensation or such representative of an amount less than the compensation
to which such person or representative would be entitled to (sic) under this
chapter, the employer shall be liable for compensation as determined in
subdivision (f) of this section only if such compromise is made with his written
approval.
'(h) Where the employer is insured and the insurance carrier has assumed the
payment of the compensation, the insurance carrier
shall be subrogated to all the rights of the employer under this section.
'(i) The right to compensation or benefits under this chapter shall be the
exclusive remedy to an employee when he is injured, or to his eligible survivors
or legal representatives if he is killed, by the negligence or wrong of any other
person or persons in the same employ: Provided, That this provision shall not
affect the liability of a person other than an officer or employee of the
employer.'
2

If the representative decides to bring suit against the third person within six
months of the award, as in this case, the employer's liability for compensation
is reduce by the amount recovered by the representative from the third person.
See 33(f), supra, n. 1.

284 F.Supp. 740.

392 F.2d 918.

393 U.S. 820, 89 S.Ct. 123, 21 L.Ed.2d 92.

The District Court found that crucial factual issues existed regarding the
longshoremen's knowledge of the open hatch and the parties' relative duties of

inspection. McNeill had been present at the time the hatch lids were 'winged
out,' but the court noted that the factual question was posed whether McNeill
could reasonably have assumed that the covers would be replaced and had
merely entered the area to check it for safety.
7

The Illinois Wrongful Death Act was amended in 1967 to remove the ceiling on
damages, but the amendment was made prospective only, and the Act still
limits the recovery to $30,000 'where such death occurs on or after July 8, 1957
and prior to the effective date (August 18, 1967) of this amendatory Act of
1967 * * *.' Ill.Rev.Stat., c. 70, 2.
The District Court has reserved the question whether, suing as subrogee, the
employer's recovery would be limited by the Illinois statute:
'In our judgment, defendant's theory of a direct action cannot be supported, and
its counterclaim must be dismissed without prejudice to the filing of an
amended counterclaim which alleges a cause of action derived from the persons
entitled to compensation. If such an amendment is filed, we may then have
occasion to consider whether as subrogee or assignee, the defendant's possible
recovery is limited by the damage ceiling of the Illinois Wrongful Death Act.'
284 F.Supp., at 744745.

284 F.Supp., at 744. The District Court noted that the petitioner's theory is
summarized in 96 of the Restatement of Restitution:
'A person who, without personal fault, has become subject to tort liability for
the unauthorized and wrongful death of another, is entitled to indemnity from
the other for expenditures properly made in the discharge of such liability.'

284 F.Supp., at 744.

10

392 F.2d, at 920.

11

Ibid.

12

Section 5, 44 Stat. 1426, as set forth in 33 U.S.C. 905, reads as follows:


'The liability of an employer prescribed in section 904 of this title shall be
exclusive and in place of all other liability of such employer to the employee,
his legal representative, husband or wite, parents, dependents, next of kin, and
anyone otherwise entitled to recover damages from such employer at law or in
admiralty on account of such injury or death, except that if an employer fails to
secure payment of compensation as required by this chapter, an injured
employee, or his legal representative in case death results from the injury, may

elect to claim compensation under this chapter, or to maintain an action at law


or in admiralty for damages on account of such injury or death. In such action
the defendant may not plead as a defense that the injury was caused by the
negligence of a fellow servant, nor that the employee assumed the risk of his
employment, nor that the injury was due to the contributory negligence of the
employee.'
13

Both the District Court and the Court of Appeals relied upon Doleman v.
Levine, 295 U.S. 221, 55 S.Ct. 741, 79 L.Ed. 1402, citing it for the proposition
that the employer's 'rights are derived from the person entitled to
compensation.' The decision, however, held only that, under the predecessor of
33, the employer could not maintain a wrongful death action in his own name
if he was subrogated to the rights of only one of the dependents entitled to bring
the action. Not a word of the opinion in that case suggests that 33 of the Act
was the only source of the employer's rights against third persons for liability to
his employees.

14

The District Court rested on the following rationale of the District Court for the
Southern District of California in California Casualty Indemnity Exchange v.
United States, 74 F.Supp. 401, 404:
'The right of recoupment (under the federal Act) on the ground of third party
liability is not a right created in the libelants by Statute as in the California
Compensation Act. * * * The difference lies in the fact that the rights of the
employer and its insurance carrier under the Longshoremen's Act result solely
by an assignment of the original rights of the injured person, which original
rights are not created by the Statute. The act of the injured person, or
representatives of decedent in seeking and accepting compensation under the
Longshoremen's Act operates as an assignment of those rights and creates no
new right of action in the employer as is done in the California Law. The
assignee has and can have no greater right than the assignor. * * *' It is clear
even from the face of this passage, however, that the court in California
Casualty was addressing itself to a different question from that presented by the
instant case. The plaintiffs there had brought suit 'as subrogee insurance
carrier(s),' id., at 403, and the holding was only that when the employer or his
insurance carrier sues as subrogee, his rights are derived from and therefore
identical to those of the employee. The case did not hold that the employer's
remedy as subrogee is exclusive.
Nor did the District Court for the Northern District of Ohio so hold in Reiss
S.S. Co. v. Cyr, 138 F.Supp. 834, aff'd, 6 Cir., 229 F.2d 849, another case
relied on by the District Court below. Language in the Reiss opinion to the
effect that 33 'governs exclusively in instances of third party liability,' id., at

836, referred only to the relationship between employer and employee under the
Act, not to the relationship between the employer and third parties.
15

See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099;
Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561.

16

See supra, at 1147.

17

The context of this statement in Weyerhaeuser was our treatment of the


stevedoring contractor's contention that the shipowner's conduct had been such
as to preclude recovery for the stevedoring contractor's breach of warranty. The
statement that the shipowner owed the stevedoring contractor certain duties did
not identify the source of those duties, but our discussion of the subject was in
terms of obligations imposed by law:
'the duties owing from petitioner (the shipowner) to Connolly (the
longshoreman) were not identical with those from petitioner to respondent (the
stevedoring contractor). While the jury found petitioner 'guilty of some act of
negligence,' that ultimate finding might have been predicated, inter alia, on a
failure of petitioner to remove the shelter when the ship left New York, or a
failure to correct or warn respondent of a latent dangerous condition known to
petitioner when respondent began the Boston unloading. Likewise, the finding
might have been predicated on a failure of petitioner during the five days in
Boston to inspect the shelter, detect and correct the unsafe condition. Although
any of these possibilities could provide Connolly a basis of recovery, at least
the latter would not, under Ryan, prevent recovery by petitioner in the thirdparty action.' 355 U.S., at 568, 78 S.Ct., at 441.

18

The Federal District Court for the Southern District of California has held that
the shipowner owes the stevedoring contractor at least the following
obligations:
'(1) to exercise ordinary care under the circumstances to place the ship on
which the stevedoring work is to be done, and the equipment and appliances
aboard ship, in such condition that an expert and experienced stevedoring
contractor, mindful of the dangers he should reasonably expect to encounter,
arising from the hazards of the ship's service or otherwise, will be able by the
exercise of ordinary
care under the circumstances to load or discharge the cargo, as the case may be,
in a workmanlike manner and with reasonably safety to persons and property;
and (2) to give the stevedoring contractor reasonable warning of the existence
of any latent or hidden danger which has not been remedied and is not usually
encountered or reasonably to be expected by an expert and experienced

stevedoring company in the performance of the stevedoring work aboard the


ship, if the shipowner actually knows or, in the exercise of ordinary care under
the circumstances, should know of the existence of such danger, and the danger
is one which the shipowner should reasonably expect a stevedoring contractor
to encounter in the performance of the stevedoring contract.' Hugev v.
Dampskisaktieselskabet International, 170 F.Supp. 601, 610611, aff'd sub
nom. Metropolitan Stevedore Co. v. Dampskisaktieselskabet nternational, 9
Cir., 274 F.2d 875, cert. denied, 363 U.S. 803, 80 S.Ct. 1237, 4 L.Ed.2d 1147.
While the court identified these obligations as implied in fact from the
stevedoring contract, it indicated that they also constituted the 'duty of ordinary
care imposed by law toward 'persons rightfully transacting business on ships."
170 F.Supp., at 610.
In the case of Mickle v. The Henriette Wilhelmine Schulte, 188 F.Supp. 77, 80,
the District Court for the Northern District of California, while rejecting the
argument that such obligations were contractual, agreed that the occupier of a
ship.
'owes certain duties of care to a business invitee, especially to an independent
contractor, such as a stevedore company, which comes onto the premises to
perform services, 2 Harper & James, The Law of Torts, Section 27.12 (1956),
including the duty not to cause injury by negligent activity, 2 Restatement of
Torts, Section 341; the duty to warn of latent perils actually known to the
occupier, Prosser on Torts, 453 (1955); and the duty to inspect the premises to
discover dangerous conditions. 2 Restatement of Torts, Section 343. See,
generally Prosser, supra, 45262.'
19

Such reciprocal contractual warranties were recognized in Ryan Marine


Terminals argues, by the Court's statement that 'the stevedoring contractor * * *
has received a contractual quid pro quo from the shipowner for assuming
responsibility for the proper performance of all of the latter's stevedoring
requirements * * *.' 350 U.S., at 129, n. 3, 76 S.Ct., at 235. (Emphasis in
original.) Other courts have most often dealt with the shipowner's duties only in
the context of a stevedoring contractor's defense to a shipowner's claim for
breach of Ryan warranties. See, e.g., D/S Ove Skou v. Hebert, 5 Cir., 365 F.2d
341; T. Smith & Son v. Skibs A/S Hassel, 5 Cir., 362 F.2d 745; Albanese v.
N.V. Nederl. Amerik Stoom v. Maats., 2 Cir., 346 F.2d 481, rev'd on other
grounds, 382 U.S. 283, 86 S.Ct. 429, 15 L.Ed.2d 327; Misurella v. Isthmian
Lines, Inc., 2 Cir., 328 F.2d 40; Pettus v. Grace Line, Inc., 2 Cir., 305 F.2d 151;
Drago v. A/S Inger, 2 Cir., 305 F.2d 139, cert. denied, Daniels & Kennedy, Inc.
v. A/S Inger, 371 U.S. 925, 83 S.Ct. 292, 9 L.Ed.2d 232; Calmar S.S. Corp. v.
Nacirema Operating Co., 4 Cir., 266 F.2d 79, cert. denied, 361 U.S. 816, 80

S.Ct. 56, 4 L.Ed.2d 62. They have on occasion, however, stated or intimated
that the shipowner makes certain affirmative warranties to the stevedoring
contractor whose breach would support an action for damages. See, e.g., The
No. 34, 2 Cir., 25 F.2d 602; Pettus v. Grace Line, Inc., 2 Cir., 305 F.2d 151, 155
(dissenting opinion of Judge Clark); Cusumano v. Wilhelmsen, D.C., 267
F.Supp. 164; Ring v. Motor Vessel Cape Clear, D.C., 226 F.Supp. 709. See
also Mowbray v. Merryweather, (1895) 2 Q.B. 640. See generally Proudfoot,
'The Tar Baby': Maritime Personal-Injury Indemnity Actions, 20 Stan.L.Rev.
423, 442445 (1968).
20

The stevedoring contractor's warranty of workmanlike service under Ryan


extends to the shipowner even in the absence of contractual privity between the
parties. Waterman S.S. Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 81
S.Ct. 200, 5 L.Ed.2d 169; Crumady v. The Joachim Hendrik Fisser, 358 U.S.
423, 79 S.Ct. 445, 3 L.Ed.2d 413. For the suggestion that the stevedoring
contractor may be the beneficiary of certain of the shipowner's obligations
under the charter agreement, see Drago v. A/S Inger, 2 Cir., 305 F.2d 139, 143.

21

See supra, at 410-411.

22

This Court has recognized the objective under the Compensation Act of 'placing
the burden ultimately on the company whose default caused the injury.' Italia
Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315,
324, 84 S.Ct. 748, 754, 11 L.Ed.2d 732. And see Reed v. The Yaka, 373 U.S.
410, 414, 83 S.Ct. 1349, 1353, 10 L.Ed.2d 448.

23

Davis v. American President Lines, D.C., 106 F.Supp. 729, 730. For other
decisions recognizing such a quasi-contractual right of indemnity under federal
maritime law, see, e.g., Parenzan v. Iino Kaiun Kabushiki Kaisya, 2 Cir., 251
F.2d 928, cert. denied, sub nom. International Terminal Operating Co. v. Iino
Kauin Kaisha, 356 U.S. 939, 78 S.Ct. 781, 2 L.Ed.2d 814; American President
Lines, Ltd. v. Marine Terminals Corp., 9 Cir., 234 F.2d 753, cert. denied, 352
U.S. 926, 77 S.Ct. 222, 1 L.Ed.2d 161; Berti v. Compagnie De Navigation
Cyprien Fabre, 2 Cir., 213 F.2d 397; States S.S. Co. v. Rothschild Int'l
Stevedoring Co., 9 Cir., 205 F.2d 253; United States v. Rothschild Int'l
Stevedoring Co., 9 Cir., 183 F.2d 181; Standard Oil Co. v. Robins Dry Dock &
Repair Co., 2 Cir., 32 F.2d 182; McFall v. Compagnie Maritime Belge, 304
N.Y. 314, 107 N.E.2d 463.

24

See also Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co.,
376 U.S. 315, 320, 84 S.Ct. 748, 751, 11 L.Ed.2d 732.

25

See also 350 U.S., at 132, n. 6, 76 S.Ct., at 236. The Ryan opinion also
recognized the difference between, and treated separately, the noncontractual

right of indemnity and the claim for contribution from a joint tortfeasor. Id., at
133, 76 S.Ct., at 237.
26

Some have thought that the exclusivity of the employer's statutory liability to
the employee would prevent the shipowner from asserting a right of indemnity
against the stevedoring contractor based on the latter's wrong to the employee.
See, e.g., Ryan, supra, 350 U.S., at 142, 76 S.Ct., at 242 (Black, J., dissenting);
Brown v. American-Hawaiian S.S. Co., 3 Cir., 211 F.2d 16; Slattery v. Marra
Bros., 2 Cir., 186 F.2d 134, cert. denied, 341 U.S. 915, 71 S.Ct. 736, 95 L.Ed.
1351. But there is no such barrier, of course, to a direct action by the
stevedoring contractor against the shipowner.

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